Checks and Balances on Surveillance of US Citizens: The Role of Watchdog Organizations

The surveillance of US citizens by the US National Security Agency (NSA)’s PRISM program revealed in the media this week was reviewed and approved by a court (the FISA Court). I’d like to know more about what kind of review that court actually conducts–do they automatically approve requests, or are requests given detailed scrutiny? I’m skeptical that going on a fishing expedition through everyone’s data is wise–it seems like the antithesis of what was intended in our constitutional protections. But on the other hand, I’m somewhat comforted by the knowledge that at least some kind of court review took place. The main safeguard of our liberty is the system of checks and balances between branches of government. Today the ACLU published a nice blog post explaining why check and balances are the key issue in this controversy.

Are checks and balances functioning as intended? And what about provisions of the USA Patriot Act like National Security Letters (NSLs) that circumvent checks and balances entirely?

A bit of historical context will help. In the wake of the Watergate scandal, we were left with a quandary: when is it OK to spy on people? Clearly it’s not OK to spy on other political parties in the US, but what if we suspect someone is actually spying on us for a foreign power? What if we want to spy on foreign powers? The Foreign Intelligence Surveillance Act (FISA) set up rules, and created the FISA court to make decisions about where to draw the line. FISA sets up checks and balances between branches of government–the judiciary (The FISA Court) oversees what the federal government and law enforcement are doing and helps them figure out what is allowable. The people going after the bad guys are expected to pursue their targets with maximum enthusiasm using every tool at their disposal, and the judiciary sets limits and helps them draw the line in an appropriate place. As far as I can tell, FISA did a nice job of balancing privacy and security.

In the wake of the September 11, 2001 terrorist attacks, the USA Patriot Act eroded that balance. It is an enormous document that legislators literally could not have read before approving. The time between introduction of the bill and congressional approval was too short for anyone to have even read it through once. Two areas are particularly concerning to me: National Security Letters and Section 215.

When the government issues a National Security Letter (NSL), it can obtain access to all of a person’s records of any kind, even if that person is not suspected of a crime. The information merely needs to be declared relevant to an ongoing investigation of terrorism or espionage. Anyone receiving a request for documents under this provision is barred from telling anyone–a “gag order.” There is no court review. In March 2013, in a case brought by the Electronic Frontier Foundation, NSLs were declared unconstitutional and the government was barred from enforcing gag orders on them. This is just latest in a long series of legal battles, and an appeal of this decision is expected.

Section 215 of the Patriot Act modifies FISA to allow the FBI to request “books, records, papers, documents, and other items.” Like NSLs, the materials merely need to be deemed relevant to an investigation–the targets need not be suspected of any crime. Fortunately, section 215 requests do undergo judicial review. However, such requests are made ex parte–the person themselves is never notified of the request and has no opportunity to oppose it. In 2003, the ACLU brought suit against the government on behalf of a Mosque in Michigan that believes its membership records had been obtained by these means. Slate believes that section 215 has been used to authorize PRISM.

I give a lecture each year in my class CS4001 Computer, Society, and Professionalism on FISA and The USA Patriot Act. And it’s a labor of love–I spend more time updating my notes for that class each year than for any other half a dozen classes combined. This stuff is insanely complicated and confusing. (And if there are experts who see any errors in what I’ve written, corrections are greatly appreciated!) There are provisions of these acts that are important to our safety and security. For example, wiretaps used to be restricted to a particular (land) phone line in a particular jurisdiction. In the age of cheap disposable cell phones, The Patriot Act allows law enforcement to get a warrant to tap the phone of a particular individual, whatever phone they are using and wherever they are located. That’s just common sense. The USA Patriot Act is a complicated combination of essential tools to help law enforcement in their important job, and egregious erosions of our liberty. In a 90-minute lecture I feel like I barely scratch the surface of the topic. Although I have been able to glean a bit by reading original legislation and court documents online, much of what I have able to figure out is thanks to documents posted by the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU). They are both bringing lawsuits on the public’s behalf, and educating citizens about the issues.

If you care about these issues, please support EFF and the ACLU. The defense of our liberty is supposed to be done by checks and balances between branches of government. But since those checks are sometimes lacking, our nonprofit watchdog organizations have a key role to play.